Opinion
8805-02832; CA A50540
Argued and submitted May 4, 1990
Reversed and remanded with instructions June 13, 1990
Appeal from Circuit Court, Multnomah County.
Donald H. Londer, Judge.
Bradley R. Scheminske, Portland, argued the cause for appellants. With him on the brief were Thaddeus J. Hettle and Scheminske Lyons, Portland.
Robert K. Udziela, Portland, argued the cause for respondent Brenton R. Kusch. With him on the brief were Donald R. Wilson and Pozzi, Wilson, Atchison, O'Leary Conboy, Portland.
John T. Bagg, Assistant Attorney General, Salem, argued the cause for respondents SAIF Corporation and Portland Rent-All. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Joseph, Chief Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reversed and remanded with instructions to dismiss request for review.
Appellants appeal from a judgment in favor of claimant for attorney fees awarded by the trial court pursuant to ORS 656.388 (2) after a Worker's Compensation Board referee had denied claimant's request. In considering claims for attorney fees pursuant to ORS 656.388 (2), the circuit court is without authority to determine entitlement to fees under ORS 656.307 (5), ORS 656.382 (2) or ORS 656.386 (1). ORS 656.388 (2) gives the court authority only to determine the amount of fees awarded by the Board or referee under ORS 656.386 (1). See Davis v. Aetna Casualty Co., 102 Or. App. 132, 793 P.2d 334 (1990). Therefore, we reverse the judgment.
The judgment is against Aetna Commercial Insurance only.
ORS 656.388 (2) provides:
"If an attorney and the referee or board cannot agree upon the amount of the fee, each forthwith shall submit a written statement of the services rendered to the presiding judge for the circuit court in the county in which the claimant resides. The judge shall, in a summary manner, without the payment of filing, trial or court fees, determine the amount of such fee. This controversy shall be given precedence over other proceedings."
In its 1990 Special Session, the legislature amended ORS 656.388 to delete subsection (2), effective July 1, 1990. Senate Bill 1197 (1990 Special Session), §§ 30, 54, 55.
Reversed and remanded with instructions to dismiss the request for review.
A similar judgment was entered against SAIF Corporation. Although SAIF has not appealed from that judgment, in its brief it argues that "the appropriate remedy in this case is a return to the circuit court with instructions to find no attorney fees payable against either party." We are without authority to reverse a judgment from which there is no appeal.